Lands were expressly excepted from the grant made in 1864 for
the benefit of the Northern Pacific Railroad, which were not free
from preemption "or other claims or rights" at the time the line of
the road was definitely fixed and a plat thereof filed in the
office of the Commissioner of the General Land Office. The general
route of the railroad was fixed February 21, 1872, and its line of
definite location on the 6th of July, 1882. After the company filed
a map of general route, the Commissioner of the General Land
Office, under the directions of the Secretary of the Interior,
April 22, 1872, transmitted a diagram of that route to the register
and receiver of the land office at Helena, Montana, with a letter
of instructions directing the withdrawal from sale or location,
preemption, or homestead entry, all the surveyed and unsurveyed
odd-numbered sections of public lands falling within the limits of
forty miles as designated on that map. The lands in dispute are
within the exterior lines of both the general and definite routes
of the railroad. Prior to such definite location, certain persons,
qualified to purchase mineral lands under the laws of the United
States, entered upon the possession of
Page 166 U. S. 621
these lands, and did "file upon" them "as mineral lands,"
applying for patents, and conforming in all respects to the
provisions of Chapter 6 of the Revised Statutes of the United
States, Title XXXII, relating to "Mineral Lands and Mining
Resources." The company filed a protest against the perfection of
any entry of the lands as mineral lands upon the ground that they
were not mineral lands nor commercially valuable for any gold or
other precious metals therein contained. At the time of the
definite location of the Northern Pacific Railroad and of the
filing of the plat and map thereof in the General Land Office, the
applications for these lands as mineral lands were pending and
undetermined, the applicants claiming, before the proper office,
that they were mineral lands of the United States to which they
were entitled under their respective applications, and not lands in
quality such as was described in the grant to the Northern Pacific
Railroad Company. On the 4th day of August, 1887, the company
presented to the register and receiver of the proper land office
for approval, a list of lands selected by it as having been granted
by the act of Congress, to the end that such lands (the list
including the lands here in dispute) might be patented to it, but
that officer refused to approve such list because of the existence,
on the 6th day of July, 1882, of the above claims to the lands as
mineral lands. It did not appear from the record what became of the
several applications set out in the answer to purchase these lands
as mineral lands, nor whether the railroad company appealed from
the decision made in 1887 by the local land office at Helena
refusing to approve the list presented of lands claimed by it under
the act of Congress.
Held that the above applications were
"claims" within the meaning of the Act of July 2, 1864, granting
lands to aid in the construction of a railroad and telegraph line
from Lake Superior to Puget Sound on the Pacific coast by the
northern route, and excepting therefrom lands not
"free from preemption or other claims or rights at the time the
line of said road is definitely fixed, and a plat thereof filed in
the office of the Commissioner of the General Land Office;"
consequently, the lands embraced by those applications did not
pass to the railroad company under the grant made by the above
act.
The case is stated in the opinion.
Page 166 U. S. 622
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This action was brought by the Northern Pacific Railroad Company
to recover from the defendants in error (the original defendants)
the possession of section twenty-one, township ten north, of range
three west, in the County of Lewis and Clarke, in the State of
Montana.
The railroad company claims title under the Act of Congress of
July 2, 1864, 13 Stat. 365, c. 217, granting lands to aid in the
construction of a railroad and telegraph line from Lake Superior to
Puget Sound, on the Pacific Coast, by the northern route.
The defendants do not assert title in themselves, but resist the
claim of the railroad company upon the ground that, at the time of
the definite location of the Northern Pacific Railroad and of the
filing of the plat thereof in the office of the Commissioner of the
General Land Office, such "claims" were made of record upon the
lands in dispute as excluded them from the grant to the Northern
Pacific Railroad Company.
Congress granted to the Northern Pacific Railroad Company every
alternate section of public land "not mineral" designated by odd
numbers, to the amount of twenty alternate sections per mile on
each side of the railroad line, as the company might adopt, through
the territories of the United States, and ten alternate sections
per mile on each side of the railroad whenever it passed through
any state,
"and whenever on the line thereof, the United States have full
title, not reserved, sold, granted or otherwise appropriated, and
free from preemption,
or other claims or rights
at the time the line of said road is definitely fixed, and
a plat thereof filed in the office of the Commissioner of the
General Land Office, and whenever, prior to said time, any of said
sections or parts of sections shall have been granted, sold,
reserved, occupied by homestead settlers, or preempted or otherwise
disposed of, other lands shall be selected by said company in lieu
thereof, under
Page 166 U. S. 623
the direction of the Secretary of the Interior, in alternate
sections and designated by odd numbers, not more than ten miles
beyond the limits of said alternate sections. . . .
Provided
further that all mineral lands be, and the same are hereby,
excluded from the operations of this act, and in lieu thereof a
like quantity of unoccupied and unappropriated agricultural lands,
in odd-numbered sections, nearest to the line of said road may be
selected as above provided,
and provided further that the
word 'mineral,' when it occurs in this act, shall not be held to
include iron and coal."
§ 3.
The sixth section directed the lands to be surveyed for forty
miles in width on both sides of the entire line of the road after
the general route was fixed, and as fast as was required by the
construction of the railroad, and provided that
"the odd sections of land hereby granted shall not be liable to
sale, or entry, or preemption, before or after they are surveyed,
except by said company, as provided in this act, but the provisions
of the Act of September, eighteen hundred and forty-one, granting
preemption rights, and the acts amendatory thereof, and of the act
entitled 'An act to secure homesteads to actual settlers on the
public domain,' approved May twenty, eighteen hundred and
sixty-two, shall be, and the same are hereby, extended to all other
lands on the line of said road, when surveyed, excepting those
hereby granted to said company. And the reserved alternate sections
shall not be sold by the government at a price less than two
dollars and fifty cents per acre, when offered for sale."
§ 6.
The amended complaint alleged that the railroad company duly
accepted the terms and conditions of the act of Congress; that the
general route of the railroad extending through the State of
Montana was duly fixed February 21, 1872; that the land in dispute
was on and within forty miles of such general route, and at that
date was
"public land, to which the United States had full title, not
reserved, sold, granted, or otherwise appropriated, and free from
preemption or other claims or rights;"
that at the date of the passage of the act of 1864, as well as
when said general route was fixed, no part of the land in
controversy was "known mineral land," and
Page 166 U. S. 624
"was not mineral land, nor was any part of said last-described
land within any exceptions from said grant;" that, on July 6, 1882,
the railroad company definitely fixed the line of its railroad,
extending opposite to and past said section 21, township 10 N.,
range 3 W., and filed a plat thereof in the office of the
Commissioner of the General Land Office; that "said land is on, and
within forty miles of, said line of railroad so definitely fixed;"
that thereafter the company duly constructed and completed that
portion of its railroad and telegraph line extending over and along
its line of definite location, whereupon the President of the
United States appointed three commissioners to examine the same,
who reported that that portion of the line had been completed in a
good, substantial, and workmanlike manner; that the President of
the United States duly accepted said line of road and telegraph so
constructed and completed; that at the date of so definitely
locating the line of railroad, and at the time of the filing of the
plat thereof in the office of the Commissioner of the General Land
Office, as above stated, the land in dispute was "not known" to be
mineral land, but was agricultural land, to which "the United
States had full title, not reserved, sold, granted, or otherwise
appropriated, and free from preemption or other claims or
rights."
The defendants, in their answer,
"confessing that said premises did not contain gold or other
precious metals in paying quantities, or in such quantity as to
make the same, or any part thereof, commercially valuable therefor,
nevertheless say,
as to the northeast quarter of section
21, that heretofore, to-wit, on the second day of August,
1880, Theodore H. Kleinschmidt, Edward W. Knight, Henry M. Parchen,
Charles K. Wells, George P. Reeves, David H. Cuthbert, Cornelius
Hedges, and Stephen E. Atkinson, each being then and there a
citizen of the United States, and each having theretofore filed
upon a certain separate twenty acres on the northeast quarter of
said section according to the laws of the Territory of Montana and
the mining usages and customs then in force in the unorganized
mining district in which said land was situated, and being then in
all respects qualified to enter mineral land under
Page 166 U. S. 625
the laws of the United States, did enter into the possession of,
and did enter in the United States land office, and did file upon
the said quarter of said section in the land office of the United
States at Helena, Montana, in which district said land was situate,
as mineral land, and did apply for a patent therefor, and did then
and there, and in due form, file an application to purchase said
premises as such mineral land, and did then and there make oath
before the register and receiver of said land office that they had
discovered mineral thereon and had located the said quarter section
as mineral land, and claimed the same as such for the valuable
mineral deposits therein, and that they had complied with chapter 6
of title XXXII of the Revised Statutes of the United States, which
said application was so filed in the land office at Helena,
Montana, under the oath of the said applicants, showing that they
had complied with the law aforesaid, and describing the same by
legal subdivisions, and they did then and there, prior to filing
said application, post in a conspicuous place on the claim embraced
therein a copy of said application and notice hereinafter
mentioned, which said notice did then and there remain
conspicuously posted on said premises during the period of
publication hereafter mentioned, and they did then and there file
with their said application in said land office an affidavit of two
persons that such notice had been so duly posted, and did then and
there file a copy of said notice in the land office, with the
register and receiver thereof, and by said application they
requested to be permitted to purchase the same as mineral land, and
they then and there undertook and offered to maintain by proof that
the said premises were valuable for the gold contained therein, and
were mineral lands of the United States, to which they were
entitled under the laws thereof, and that they had done the
requisite amount of work thereon, to-wit, work of the value of five
hundred dollars, and were entitled to a patent therefor, which said
application and affidavit and notice were then and there entered of
record in said United States land office by the register and
receiver thereof, and the said application was set for a hearing
upon their said proofs to be produced, and notice of such hearing
in
Page 166 U. S. 626
due form of law was given by the register and receiver in the
proper newspaper designated for that purpose, and was duly
published therein, which said entry, application, affidavits, and
notice were in all respects formal according to law, and the said
application was set down for a hearing in said land office by the
register and receiver thereof at the expiration of the period of
time prescribed in said notice, and at the date at which the same
was so set, the said plaintiff having theretofore filed a protest
against the perfection of the said entry, for the reason, as
claimed by said plaintiff, that the same were not mineral lands, or
commercially valuable for the gold or other precious metals therein
contained. That said application was continued thereafter, by the
consent of parties or otherwise, from time to time, and was
asserted and remained pending on the 6th day of July, 1882, and
thereafter the said applicants, on the 6th day of July, 1882, and
thereafter as theretofore, averring their ability to prove that the
said land was commercially valuable for the gold therein contained,
and was mineral land, within the definition of that phrase
contained in the act granting lands to said plaintiff, mentioned in
said amended complaint, and the said applicants were on the date
last aforesaid claiming, affirming, and undertaking to maintain, on
their application for said premises in said land office, that the
same was mineral land of the United States, to which they were
entitled thereunder, and was not land in quality such as was
described in the grant to the said plaintiff."
The answer alleged like filings, applications, etc., under the
mining laws of the United States, as follows: By George P. Reeves,
Helen H. Reeves, Laura C. Ballou, John W. Eddy, Evelyn M. Eddy,
Edward W. Knight, Theodosia M. Knight, and Anna Natolia King,
August 12, 1880, upon twenty acres in the
northwest
quarter of said section 21; by Theodore Kleinschmidt, Henry M.
Parchen, David H. Cuthbert, Stephen E. Atkinson, Lucius L.
Rosecrans, Emma M. Parchen, Mary M. Kleinschmidt, and Annie E.
Cuthbert, February 19, 1881, upon twenty acres in the
southwest
quarter of the same section, and by Cornelius Hedges, Thomas
A. H. Hay, Mary L. Guthrie, Patrick Quinn, Louis A. Walker, William
D. Wheeler, Edna L.
Page 166 U. S. 627
Hedges, and George E. Carpenter, March 13, 1880, upon 20 acres
of the
southeast quarter of the same section.
Referring to the proceedings in the office of the County Clerk
and Recorder of the County of Lewis and Clarke, Montana, in which
county the premises are situate, and in the United States land
office at Helena, the answer stated that they were in the form
prescribed by law for the claim and entry of placer mining claims,
and that thereafter, on the 4th day of August, 1887, the plaintiff
presented to the said register and receiver a list of lands
selected by it as having been granted by the act
aforementioned,
"to be approved, to the end that the said premises in said list
described might [be] certified to it for patent, which list
includes said section twenty-one, but to approve said list or
certify said lands to said company the said register and receiver
and the Land Department of the United States refused, because of
the existence on the 6th day of July, 1882, of the foregoing claims
to the same as mineral lands;"
that on the 21st day of February, 1872, the plaintiff filed a
map of the general route of its road in the office of the
Commissioner of the General Land Office; that thereafter the
commissioner, under the directions of the Secretary of the
Interior, duly prepared a plat showing that portion of the
preliminary or general route of the Northern Pacific Railroad
extending through the United States land district of Helena, and
designated thereon lines showing the limits of the land grant to
the plaintiff, for forty miles in width on each side of said line
of general route; that, on April 22, 1872, the Commissioner of the
General Land Office, under the directions of the Secretary of the
Interior, duly transmitted said diagram to the register and
receiver of the United States district land office at Helena, with
instructions
"to withdraw from sale or location, preemption or homestead
entry, all the surveyed and unsurveyed odd-numbered numbered
sections of public lands falling within the limits of forty miles,
as designated on this map;"
and that the said letter of instructions and diagram were
received at the United States district land office at Helena, May
6, 1872.
The plaintiff demurred to the answer, and the demurrer
Page 166 U. S. 628
was overruled. 46 F. 239. A rehearing having been granted, and
the cause finally heard upon the amended complaint, the answer and
the demurrer to the answer, a judgment was rendered for the
defendants. 47 F. 604. That judgment was affirmed in the circuit
court of appeals. 49 F. 129.
It appears from the above statement of the case:
That lands were expressly excepted from the grant made for the
benefit of the Northern Pacific Railroad that were not free from
preemption "or other claims or rights" at the time the line of the
road was definitely fixed and a plat thereof filed in the office of
the Commissioner of the General Land Office.
That the general route of the Northern Pacific Railroad was
fixed February 21, 1872, and its line of definite location was
established, and a plat thereof filed, on the 6th day of July,
1882.
That after the railroad company filed its map of general route,
showing the limits of such route for forty miles in width on each
side of its line, the Commissioner of the General Land Office,
under the directions of the Secretary of the Interior, April 22,
1872, transmitted a diagram of such route to the register and
receiver of the land office at Helena, Montana, with a letter of
instructions directing the withdrawal from sale or location,
preemption, or homestead entry, all the surveyed and unsurveyed
odd-numbered sections of public lands falling within the limits of
forty miles, as designated on that map.
That the lands in dispute are within the exterior lines of both
the general and definite routes of the railroad.
That prior to such definite location, certain persons qualified
to enter mineral lands under the laws of the United States entered
upon the possession of the lands in dispute, and did "file upon"
them "as mineral lands," applying for patents therefor, and
conforming in all respects to the provisions of chapter 6 of the
Revised Statutes of the United States, title XXXII, relating to
"Mineral Lands and Mining Resources."
That the railroad company filed in the proper office a protest
against the perfection of any entry of these lands as
Page 166 U. S. 629
mineral lands, upon the ground that they were not mineral lands,
nor commercially valuable for any gold or other precious metals
therein contained.
That at the time of the definite location of the Northern
Pacific Railroad and of the filing of the plat and map thereof in
the General Land Office, on the 6th day of July, 1882, the
applications for these lands as mineral lands were pending and
undetermined, the applicants claiming, affirming, and undertaking
to maintain before the proper office that they were mineral lands
of the United States to which they were entitled under their
respective applications, and not lands in quality such as were
described in the grant to the Northern Pacific Railroad Company,
and
That on the 4th day of August, 1887, the railroad company
presented to the register and receiver of the proper land office
for approval a list of lands selected under the above act of
Congress, to the end that they might be patented to it, but that
officer refused to approved such list (which included the lands
here in dispute) because of the existence on the 6th day of July,
1882, of the above claims to the lands as mineral lands.
It does not appear from the record what became of the several
applications set out in the answer to purchase these lands as
mineral lands, nor whether the railroad company appealed from the
decision made in 1887 by the local land office at Helena, refusing
to approve the list presented of lands claimed by it under the act
of Congress.
We have seen that the Act of July 2, 1864, under which the
railroad company claims title, excluded from the grant made by it
all lands that were not,
at the time the line of the road was
definitely fixed, free from preemption "
or other
claims or rights," and the demurrer to the answer admits that
at that time there were claims pending in the land office,
undermined, to purchase these lands as mineral lands, and such
applications conformed in all respects to the laws of the United
States then in force relating to mineral lands.
But it is said that no account is to be taken of those
applications, for the reason that the present defendants, who
had
Page 166 U. S. 630
nothing to do with them, and had no interest in them, confess in
their answer that the lands in question
"did not contain gold or other precious metals in paying
quantities, or in such quantity as to make the same, or any part
thereof, commercially valuable therefor;"
that the lands are therefore of be regarded as agricultural
lands that passed to the company under the act of 1864, and were
preserved to it by the filing of the map of the general route in
1872, and by their withdrawal in that year by the General Land
Office "from sale or location, preemption or homestead entry." This
view overlooks the fact that the express declaration of Congress
was that no public lands should pass to the company to which at the
time of the definite location of the road, the United States did
not have title free from preemption "or other claims or rights." If
the applications made in 1880 and 1881 to purchase different parts
of the section in question, and which were pending and undisposed
of in 1882, when the company filed its map of definite location,
constituted "claims" within the meaning of the act of 1864, then it
was not competent for the defendants, by any admission they might
make, for whatever purpose made, as to the quality of these lands,
whether mineral or not, to eliminate from the case the essential
fact that these "claims" existed of record when the line of the
road was definitely located. Indeed, if it now appeared that the
land office finally adjudged, after the definite location of the
road, that the lands embraced by those applications were not
mineral, they could not be held to have passed to the railroad
company under the act of 1864, for the reason that they were not at
the time of such definite location, free from preemption, or "other
claims or rights."
Any other interpretation would defeat the evident purpose of
Congress in excepting from railroad grants lands upon which claims
existed of record at the time the road to be aided was definitely
located. What that purpose was has been frequently adverted to by
this Court. In
Kansas Pacific Railway v. Dunmeyer,
113 U. S. 629,
113 U. S.
639-644, which case involved the construction of an act
of Congress excluding
Page 166 U. S. 631
from a railroad grant public lands sold, reserved, or otherwise
disposed of by the United States, and to which a preemption or
homestead claim may have attached at the time the line of its road
was definitely fixed, this Court said:
"It is argued by the company that, although Miller's homestead
entry had attached to the land, within meaning of the excepting
clause of the grant, before the line of definite location was filed
by it, yet when Miller abandoned his claim, so that it no longer
existed, the exception no longer operated, and the land reverted to
the company; that the grant, by its inherent force, reasserted
itself, and extended to or covered the land, as though it had never
been within the exception. . . . This filing of the map of definite
location furnished also the means of determining what lands had
previously to that moment been sold, reserved, or otherwise
disposed of by the United States, and to which a preemption or
homestead claim had attached; for by examining the plats of this
land in the office of the register and receiver, or in the General
Land Office, it could readily have been seen if any of the odd
sections within ten miles of the line had been sold or disposed of
or reserved, or a homestead or preemption claim had attached to any
of them. In regard to all such sections, they were not
granted."
Again:
"The company had no absolute right until the road was built, or
that part of it which came through the land in question. The
homestead man had five years of residence and cultivation to
perform before his right became absolute. The preemptor had similar
duties to perform, in regard to cultivation, residence, etc., for a
shorter period, and then payment of the price of the land. It is
not conceivable that Congress intended to place these parties as
contestants for the land, with the right in each to require proof
from the other of complete performance of its obligation. Least of
all is it to be supposed that it was intended to raise up, in
antagonism to all the actual settlers on the soil whom it had
invited to its occupation, this great corporation, with an interest
to defeat their claims, and to come between them and the government
as to the performance of their obligations. The reasonable purpose
of the government
Page 166 U. S. 632
undoubtedly is that which it expressed, namely,"
"While we are giving liberally to the railroad company, we do
not give any lands we have already sold, or to which, according to
our laws, we have permitted a preemption or homestead right to
attach."
"No right to such land passes by this grant. No interest in the
railroad company attaches to this land, or is to be founded on this
statute. Such is the clear and necessary meaning of the words that
there is granted every alternate section of odd numbers to which
these rights have not attached. It necessarily means that if such
rights have attached, they are not granted."
Finally, and as showing the meaning of the word "attached," the
Court said:
"In the case before us, a claim was made and filed in the land
office, and there recognized, before the line of the company's road
was located. That claim was an existing one, of public record, in
favor of Miller when the map of plaintiff in error was filed. In
the language of the act of Congress, this homestead claim had
attached to the land, and it therefore did not pass by the
grant. . . . The right of the homestead having attached to the
land, it was excepted out of the grant as much as if, in a deed, it
had been excluded from the conveyance by metes and bounds."
In
Hastings & Dakota Railroad v. Whitney,
132 U. S. 357,
132 U. S. 366,
after an extended reference to the authorities and to the uniform
practice of the Land Department, the Court concluded:
"For the foregoing reasons, we concur with the court below that
Turner's homestead entry excepted the land from the operation of
the railroad grant, and that, upon the cancellation of that entry,
the tract in question did not inure to the benefit of the company,
but reverted to the government and became a part of the public
domain, subject to appropriation by the first legal applicant."
In
Whitney v. Taylor, 158 U. S. 85,
158 U. S. 92-93,
where the contest was between a railroad grant of public lands and
a homestead entry of record at the time of the filing of the
company's map of definite location, the question now before us was
again fully considered, and this principle deduced from the former
cases:
"Although these cases are none of them
Page 166 U. S. 633
exactly like the one before us, yet the principle to be deduced
from them is that when, on the records of the local land office,
there is an existing claim on the part of an individual under the
homestead of preemption law which has been recognized by the
officers of the government and has not been cancelled or set aside,
the tract in respect to which that claim is existing is excepted
from the operation of a railroad land grant containing the ordinary
excepting clauses, and this notwithstanding such claim may not be
enforceable by the claimant, and is subject to cancellation by the
government at its own suggestion, or upon the application of other
parties. It was not the intention of Congress to open a controversy
between the claimant and the railroad company as to the validity of
the former's claim. It was enough that the claim existed, and the
question of its validity was a matter to be settled between the
government and the claimant in respect to which the railroad
company was not permitted to be heard."
Other cases are to the same effect as those to which we have
above referred.
Sioux City &c. Land Co. v. Griffey,
143 U. S. 32,
143 U. S. 34;
Shiver v. United States, 159 U. S. 491,
159 U. S.
494.
The principles announced in these cases fully sustain the
proposition that if the above applications of record to purchase
these lands as mineral lands were "claims" within the meaning of
the Act of July 2, 1864, then the lands were excepted from the
operation of that act, and could not have come under the grant to
the railroad company even if, subsequently to the definite location
of the road, the applications for them were finally rejected
because of the fact that they were ascertained not to be mineral
lands.
It is necessary now to inquire whether the applications in 1880
and 1881 to purchase these lands as mineral lands were "claims,"
within the meaning of the act of 1864.
Here we are met with the suggestion that when that act was
passed, no statute of the United States provided for the purchase
of lands as mineral lands, and that when the railroad company filed
its map of general route in 1872, and when the surveyed or
unsurveyed odd-numbered sections within the exterior lines of that
route were withdrawn by the Land
Page 166 U. S. 634
Office from "sale or location, preemption or homestead entry,"
no application was on file to purchase these lands as mineral
lands.
It is quite true that at the time of the passage of the act of
1864, there was no act of Congress under which a right of claim
could be initiated to mineral lands. But, as said by Mr. Justice
Field in
Jennison v. Kirk, 98 U. S.
453,
98 U. S.
458
"for eighteen years -- from 1848 to 1866 -- the regulations and
customs of miners, as enforced and molded by the courts and
sanctioned by the legislation of the states, constituted the law
governing property in mines and in water on the public mineral
lands."
And in 1866, before the general route of the Northern Pacific
Railroad was fixed, Congress passed an act looking to a sale of the
mineral lands of the United States, and declared them to be
"free and open to exploration and occupation by citizens of the
United States, and those who have declared their intention to
become citizens, subject to such regulations as may be prescribed
by law and the local customs or rules of miners in the several
mining districts, so far as the same were not in conflict with the
laws of the United States."
14 Stat. 251, c. 262. But prior to the passage of that act,
certain important rights of miners had been recognized. In
Broder v. Water Co., 101 U. S. 274,
101 U. S. 276,
it was said to be the established doctrine of this Court that the
rights of miners who had taken possession of mines and worked and
developed them were rights which the government had, by its
conduct, recognized and encouraged, and was bound to protect,
before the passage of the act of 1866. The act of 1866 was held to
be a statutory recognition of the right to explore for mineral
lands. That right was in no wise impaired, in respect of the lands
in question, by the subsequent acceptance from the Northern Pacific
Railroad Company of its map of general route. And that act was
supplemented by the Act of May 10, 1872, 17 Stat. 91. The company
acquired, by fixing its general route, only an inchoate right to
the odd-numbered sections granted by Congress, and no right
attached to any specific section until the road was definitely
located and the map thereof filed and accepted. Until such
definite
Page 166 U. S. 635
location, it was competent for Congress to dispose of the public
lands on the general route of the road as it saw proper. Provision
for the indemnification of the company in such an emergency was
made by a clause in the act of 1864 providing that wherever, prior
to the date of definite location,
"any of said sections or parts of sections shall have been
granted, sold, reserved, occupied by homestead settlers, or
preempted or otherwise disposed of, other lands shall be selected
by said company in lieu thereof, under the direction of the
Secretary of the Interior, in alternate sections, and designated by
odd numbers, not more than ten miles beyond the limits of such
alternate sections."
13 Stat. 368. Hence it was said in
Barden v. Northern
Pacific Railroad Company, 154 U. S. 288,
154 U. S. 320,
in which case the act of 1864 was construed, that the privilege of
exploring for mineral lands was in full force at the time of the
location of the definite line of road, and was a right reserved and
excepted out of the grant at that time.
In this view -- of the soundness of which we entertain no doubt
-- it would seem to be clear that the formal applications made in
1880 and 1881, under the statutes then and still in force, to
purchase these lands as mineral lands were "claims" within the
meaning of the third section of the act of 1864. It was admitted by
the demurrer that applicants made oath before the proper officer
that they had discovered mineral thereon, and had located the said
quarter section as mineral land, and claimed the same as having
valuable mineral deposits thereon. Upon the present record, it
cannot be said that those applications were not made in good faith.
Whether the lands sought to be purchased as mineral lands were of
that character was a matter for the determination, in the first
instance, of the Land Department, and there was jurisdiction in
that department to pass upon every question arising upon
applications to purchase them as mineral lands. How, then, can it
be said that such applications, filed and of record before the
definite location of the road, were not "claims," within the
meaning of the act of 1864? As the lands in question were not free
from those claims at the time the plaintiff definitely located its
line of road, it is of no consequence what
Page 166 U. S. 636
disposition was or has been made of the claims subsequent to
that date.
The only ground upon which a contrary review can be rested is
the provision in the sixth section of the act of 1864 that
"the odd sections of land hereby granted shall not be liable to
sale or entry or preemption before or after they are surveyed
except by said company, as provided by this act."
But this section is not to be construed without reference to
other sections of the act. It must be taken in connection with
section 3, which manifestly contemplated that rights of preemption,
or other claims and rights, might accrue or become attached to the
lands granted after the general route of the road was fixed, and
before the line of definite location was established. Literally
interpreted, the words above quoted from section 6 would tie the
hands of the government so that even it could not sell any of the
odd-numbered sections of the lands after the general route was
fixed -- an interpretation wholly inadmissible in view of the
provisions in the third section. The third and sixth sections must
be taken together, and, so taken, it must be adjudged that nothing
in the sixth section prevented the government from disposing of any
of the lands prior to the fixing of the line of definite location,
or, for the reason stated, from receiving, under the existing
statutes, applications to purchase such lands as mineral lands.
Much was said at the bar as to the decision of this Court in
Buttz v. Northern Pacific Railroad, 119 U. S.
55. On one side, it is said that that case construes the
sixth section of the act of 1864 as excluding the possibility of
any right being acquired, adversely to the railroad company, to an
odd-numbered section embraced by the exterior lines of the general
route, after that route had been established. On the other side, it
is contended that the only point necessary to be determined, and
the only one judicially determined, in that case was that the
defendant could not initiate a preemption right to the land there
in dispute so long as the Indian title referred to in the opinion
was unextinguished. Without stopping to examine these contentions,
it is sufficient to say that
Page 166 U. S. 637
the
Buttz case involved no inquiry as to the respective
rights of the railroad company under the act of 1864, and of
parties making applications in due form, prior to the definite
location of its road, to purchase lands as mineral lands that were
within the exterior lines of its general route. Mr. Justice Field
delivered the opinion in the
Buttz case, and, speaking for
the Court in
Barden v. Northern Pacific Railroad Company,
above cited, stated that the grant in that act excepted the
privilege of exploring for mineral lands.
For the reasons stated, we adjudge that the lands in question
were excluded from the grant of 1864 by reason of the pendency of
record at the time of the definite location of the plaintiff's road
of applications to purchase them as mineral lands, such
applications being in the form prescribed by the acts of Congress
that related to such lands and undetermined when the company filed
its map of definite location.
The judgment below is
Affirmed.